United States District Court, S.D. Mississippi, Northern Division
ORDER CONCERNING MOTION FOR DEFAULT JUDGMENT, MOTION
TO SET ASIDE DEFAULT JUDGMENT, MOTION TO DISMISS, AND MOTION
TO STRIKE AFFIDAVIT
Guirola, Jr. United States District Judge.
THE COURT are the  Motion for Default Judgment
and  Motion to Strike Affidavit filed by the plaintiff
Ladarius Brown, the  Motion to Set Aside Default filed by
the City of Jackson, and the  Motion to Dismiss filed by
Justin Roberts. No. response was filed to the Motion for
Default Judgment, the Motion to Set Aside Default, or the
Motion to Strike Affidavit. Brown filed a response in
opposition to the Motion to Dismiss, but Roberts did not file
a reply. After reviewing the submissions of the parties, the
record in this matter, and the applicable law, the Court
finds that the Motion to Strike Affidavit should be denied.
The Motion to Set Aside Default, the Motion for Default
Judgment, and the Motion to Dismiss are taken under
advisement so that the Court can conduct an evidentiary
hearing regarding whether Roberts was served with process.
filed this lawsuit against the City of Jackson, Chief Lee
Vance in his official capacity, and Officer Justin Roberts in
his individual and official capacities, alleging that he was
arrested, detained, and confined in violation of 41 U.S.C.
§ 1983. He also filed related state law claims. The
original complaint was filed on July 25, 2017, and an amended
complaint was filed on July 26, 2017. On August 31, 2017, the
City of Jackson, Mississippi, filed an Answer containing the
following footnote: “The City of Jackson includes [sic]
municipality of Jackson, Mississippi, Lee Vance in his
official capacity, Justin Roberts in his official capacity[,
] and Officers John Doe 1-2 in their official
capacity.” (Answer at 1 n.1, ECF No. 6). Brown filed a
Summons Returned Executed, reflecting that Roberts had been
served with process on October 2, 2017. Brown filed a Motion
for Clerk's Entry of Default as to Roberts on October 25,
2017. The Motion was granted because the City of Jackson
failed to properly list Roberts as one of the parties who
filed the  Answer. Brown then filed the present Motion for
Default Judgment as to Roberts. The City of Jackson filed a
Motion to Set Aside the Clerk's Entry of Default,
asserting that its Answer was also filed on behalf of Roberts
in his official capacity as a result of the footnote
filed a Motion to Dismiss for Insufficient Service of Process
and Insufficient Process supported by an affidavit signed by
his attorney Francis Springer. Mr. Springer testified that,
upon learning that a process server working for
plaintiff's counsel was looking for Roberts, Mr. Springer
arranged for the process server to serve Roberts in the lobby
of his law office on October 2, 2017, at 3:30 p.m. Mr.
Springer further testified that he was present when Roberts
was served and he “witnessed the services [sic] and the
process server only served Justin Roberts with a summons and
complaint of a civil case filed in the Circuit Court of the
First Judicial District of Hinds County, Mississippi.”
(Aff., ECF No. 18-2). Mr. Springer asserts that no other
summons or complaint were served on Roberts during the
October 2nd meeting. (Id.) Thus, Roberts asserts
that he was never served with a copy of the summons and
complaint in this lawsuit. Brown's process server claims
that both the state court summons and complaint and the
summons and complaint in the present lawsuit were served at
the October 2, 2017 meeting in the lobby of Mr.
Springer's law office. Brown has filed a Motion to Strike
Mr. Springer's Affidavit.
MOTION TO STRIKE AFFIDAVIT
claims that Mr. Springer's testimony contains hearsay.
The Federal Rules of Evidence define “hearsay” as
a statement that “a party offers in evidence to prove
the truth of the matter asserted in the statement.”
Fed.R.Evid. 801(c)(2). Mr. Springer testified that he was
present when Roberts was served with process, that he
witnessed the service of process, and that the only summons
and complaint served at that time was a state court
complaint. Therefore, his testimony concerning the pertinent
issue of whether Roberts was served with the summons and
complaint is not hearsay. Although it is perplexing that
Roberts did not file a response in opposition to the Motion
to Strike Mr. Springer's Affidavit, Brown has not
demonstrated that the affidavit should be
MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS AND
defendant may file a motion to dismiss a complaint for
insufficient process pursuant to Fed.R.Civ.P. 12(b)(4) and
insufficient service of process pursuant to Fed.R.Civ.P.
12(b)(5). “The general rule is that ‘a signed
return of service constitutes prima facie evidence of valid
service, which can be overcome only by strong and convincing
evidence.'” People's United Equip. Fin.
Corp. v. Hartmann, 447 Fed.Appx. 522, 524 (5th Cir.
2011) (quoting O'Brien v. R.J. O'Brien &
Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993)). In
this case, the Court is faced with competing affidavits from
a process server and an attorney who witnessed the purported
service of process. The Court finds that it must conduct an
evidentiary hearing concerning whether Roberts was served
with process in this lawsuit.
MOTION FOR DEFAULT JUDGMENT AND MOTION TO SET ASIDE MOTION
FOR DEFAULT JUDGMENT
Court must address the issue of whether Roberts was served
with process before it can address the question of whether
Brown is entitled to a default judgment against Roberts.
Therefore, the Court will take the Motion for Default
Judgment and the Motion to Set Aside the Motion for Default
Judgment under advisement.
IS, THEREFORE, ORDERED AND ADJUDGED that the 
Motion to Strike Affidavit filed by the plaintiff Ladarius
Brown is DENIED.
IS, FURTHER, ORDERED AND ADJUDGED that the 
Motion for Default Judgment filed by the plaintiff Ladarius
Brown, the  Motion to Set Aside Default filed by the City
of Jackson, and the  Motion ...